Texas Natural Resource Conservation Commission
Interoffice Memorandum
To: New Source Review Permits (NSRP) Engineers
From: Ruben Herrera, P.E., Technical Specialist
Through: Victoria Hsu, P.E. NSRP Division Director
Date: August 4, 1998
Subject: PSD and Non-Attainment (NA) Applicability to the Restart of Sources that Are Shut
Down for More Than Two Years
During the past few years we have seen more and more applicants inquire about restarting
emission units, process lines, manufacturing systems or entire plants (collectively referred to as
emission source) that have been shut down for a long period of time. The question that
continually comes up is whether restarting the emission source will trigger any state and/or
federal permitting requirements. The purpose of this memo is to address federal permitting
requirements to situations where an applicant wishes to restart an emission source that has been
shut down for more than two years.
If the shutdown is less than two years, the company can effectively restart the source without
triggering PSD or NA applicability, so long as the restart does not require changes that are
considered modifications under the federal rules.
EPA's policy on the restart of emission sources has been in practice for several years and has
been bolstered through the issuance of memos and letters to states, EPA regional offices and
applicants. In general, EPA presumes that any shutdown over two years in duration is a
permanent shutdown, therefore any source that has been restarted after a shutdown of more than
two years is considered to be a new source, subject to PSD or NA applicability, unless the
applicant can rebut that presumption. In order to rebut the presumption of permanent shutdown,
the applicant must provide proof and/or demonstrate the following:
1. The source was not dismantled.
2. The source was not cannibalized.
3. The source was maintained in good working order.
4. The source can be restarted with a reasonable amount of time and with minimal work.
5. The source is still listed in the state's air quality permits (for permitted units).
6. The source is still listed in the state's emissions inventory.
7. The owner/operator has paid the appropriate fees (emission/inspection) on the emission
source.
The logic behind the presumption of permanency is simple. When an applicant shuts down a
emission source due to market slowdowns, employee strikes or other business related reasons,
the applicant will make every effort to maintain the source in good working order such that when
market conditions improve, the source can be brought back on line and become productive
within a short amount of time.
However, when the source or any part of it is dismantled or the various pieces of equipment/parts
are taken out and used elsewhere or the source is simply neglected and left to rust, then it is
reasonable to presume that the shutdown was permanent, otherwise the applicant would have
made every attempt to keep the source in good working order.
Keep in mind that not every situation you come across will be cut and dry. There may be cases
where additional information and/or research is needed to determine whether a shutdown over
two years in duration was indeed permanent. We have had a few cases where the source was
shut down for several years, but the applicant was able to successfully demonstrate that the
shutdown was never intended to be permanent. Conversely, we have also had situations where
the shutdown was just over two years, but all evidence indicated that the applicant intended the
shutdown to be permanent.
If you have any doubts, always request more information from the applicant and if possible,
enlist the aid of the appropriate regional office. Regional personnel are in a good position to help
you confirm or deny any claim made by the applicant. If you still have concerns or question,
please consult your team leader, section manager or me.
References
1. EPA HQ memo on PSD Requirements, Director of Stationary Source Enforcement Division
to Stephen Dvorkin, September 6, 1978.
2. EPA Region V memo on PSD and NSPS Applicability to a Reactivated Source, Sandra
Gardebring to Edward Reich, September 22, 1980.
3. EPA HQ memo on Reactivation of Noranda Lakeshore Mines' RLA Plant and PSD Review,
John Seitz to David Howekamp, May 27, 1987.
4. EPA Region VI memo on PSD Applicability Determination, William Hathaway to Jay
Hoover, April 17, 1989.